Withdrawal Agreement: Legal Opinion

Debate between Edward Leigh and Geoffrey Cox

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

No, no, no. We have not been attempting to secure alternative arrangements now. We have been putting forward the fact that, in the future, all those alternative arrangements are likely to exist, so the European Union has responded by saying, “We will set up a new, special negotiating track, we will negotiate with an increased urgency and to a new timetable and we will implement these”—they have defined them—“customs procedures and technologies and so on.” So it is not right to say that the same situation arises now. These systems will be developed over time and that is the purpose of the working group that the Union has agreed to set up with this country.

[Sir Edward Leigh (Gainsborough) (Con)]

I thank the Attorney General for being so patient when I have been working on this unilateral declaration for the past two months and I thank him for including it in the final agreement, but may I ask him a detailed question because the devil is in the detail? There is no doubt, having worked with academic opinion, that a unilateral declaration is absolutely binding as long as it is deposited at the time the treaty is ratified. The unilateral declaration makes it clear that there is nothing to stop the UK leaving the backstop if talks break down, but it has to be a unilateral, conditional, interpretative declaration; that is what international law states. We are signing and agreeing to this withdrawal agreement only on condition—that is why the word “conditional” is important—that, if the talks break down, we can exit. So can the Attorney General now use the word “conditional” to reassure the House?

[The Attorney General]

First, may I say to my right hon. Friend that I am extremely grateful for the dialogue that we have had and he was, in no small part, the author of the seeds of this idea. Much of the material that he and other distinguished lawyers have been able to contribute has led to the proposal that we have now adopted. But I say to him that the unilateral declaration in this case does not need to say “conditional” because it is not objected to by the Union and, if it is not objected to, and the withdrawal agreement is ratified by the Union, it becomes binding.

European Union (Withdrawal) Act

Debate between Edward Leigh and Geoffrey Cox

Tuesday 15th January 2019 Commons Chamber

[Sir Edward Leigh (Gainsborough) (Con)]

rose—

[The Attorney General]

I must make progress.

I say to my hon. Friends, as I say to Opposition Members, the EU will have to set up entirely different legal and administrative systems in order to set up the customs union that is enshrined within the backstop, yet Britain will pay not one penny of contribution to those complex administrative and technical systems which the EU will, on their side alone, have to finance. How long does the House really think that the EU would wish to go on paying for a bespoke arrangement in which they are paying tens of millions of euros to sustain a customs union that is simply on their own admission a temporary arrangement?

But even if that was wrong, there are the regulatory provisions under the backstop. They are standard non-regression clauses. They exist in free trade agreements all around the world. They provide us with the ability, if we wish to take it, of being flexible about the means by which we achieve the outcomes because all they do is require us to maintain parity of standards with the position we had when we left the European Union. Therefore, it does give us regulatory flexibility if we wish to avail ourselves of it and the European Union is faced with not a penny being paid, with tariff-free access to the customs union, with not having to obey the regulatory law—

[The Attorney General]

You upbraid me entirely justly, Mr Speaker, and I apologise.

[Sir Edward Leigh]

Everything the Attorney General says about the backstop may be true, but he knows that many of our hon. Friends are deeply concerned about this and we want an end date. I am not asking him for an answer now, but I see the Prime Minister and the Chief Whip on the Treasury Bench. There is an amendment on the Order Paper that has been selected by Mr Speaker, which could unite the party, or most of it. It is a compromise. If we can have an end date to the backstop, then we can move forward. I do not ask for an answer now, but I beg the Government to consider, over the next six hours, whether they should not accept these amendments because they would try to unlock this process and get it through Parliament.

[The Attorney General]

The amendment that my right hon. Friend has tabled would, in my judgment, not be compatible with our international law obligations. He may know and accept that, but it is certainly my view that it would not be compatible and therefore would be likely not to be seen by the European Union as ratification. It would certainly raise serious question marks over the amendment.

We need to examine the matter without the indulgence of believing that there is any other easy solution. It is sometimes said that the problem with the backstop is that it will not enable us to walk away. That is true, except in this regard: the question is what we would be walking away from. Would the other side regard it as something they would not wish to walk away from, or would it be an embrace that they would like to escape as well? If my hon. and right hon. Friends and Members of the House on both sides come to the conclusion, as I would urge them to do and as I have done after many hours of reflection, that it would be, as the hon. Member for North Down said, an instrument as painful to the European Union as it would be to us, it is a risk, weighed against the other risks, that we should take, if the consequence of not doing so is something worse.

Justice and Security Bill [Lords]

Debate between Edward Leigh and Geoffrey Cox

Thursday 7th March 2013 Commons Chamber

[Mr Leigh]

I want to have a conversation with my good friend, my hon. Friend the Member for New Forest East (Dr Lewis). We all know that the Bill is about civil cases and not criminal cases, but as he well knows, because he has been a litigant, civil cases are very important and can affect a person’s whole life. They should therefore be treated with great seriousness.

We should not approach debates where human rights are involved by saying that the litigants belong to a class of people whom we find reprehensible. It may be that they are reprehensible, but that argument is often used about minorities. It is used at the moment about Islamists and it would have been used about the IRA in the 20th century, the civilian German nationals who were interned in 1940, the Fenians in the 19th century, the French earlier than that, the Jesuits in the 17th century, the Chartists and John Wilkes. So let us not get into the mindset of, “These are unpleasant people.” They also have a right to justice.

We should sometimes imagine how we would feel if we were the litigant. Let us suppose that we felt that something terrible had happened and our rights had been infringed in some way. How would we like a procedure whereby we went to court and halfway through the defence suddenly said, “This is all very secret and we cannot share it with you” and the judge said, “Okay, I’ll adjourn that and listen to the evidence on your behalf Member for New Forest East. You can trust me. I am appointed by the state. Or perhaps we can get some barrister appointed by the state and he can hear it”?

Let us then suppose that a few hours or days later the judge says, “You haven’t heard this evidence against you, but I think your case doesn’t stand up.” What happens when he sums up at the end of the case, as of course in public he cannot adduce all this secret evidence? How would hon. Members feel if they were the litigant? Would they feel that they had received justice? What does it say for our worldwide reputation if serious allegations about torture and so on are made and a large part of the case—and the reason why the litigant did not win his case—is determined on the basis of secret evidence?

We are then told that we are putting our security services at risk. That is nonsense, because the security services are like any other defendant, in that they can choose what evidence to submit to defend themselves. Is it really beyond the wit of man to defend these cases satisfactorily, for the most part? A question of the identity of agents may arise, but nobody is suggesting that the agent has to be brought before the court of law, or to have himself or his practices identified. Surely there are ways in which the case can be defended a lot of the time. I leave that point with my hon. Friend the Member for New Forest East. I know he takes the rights of litigants and human rights seriously, and we are taking a serious step today—

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

Will my hon. Friend give way?

[Mr Leigh]

I was about to finish, but I will give way.

[Mr Cox]

Does my hon. Friend agree that it is a rule of law that if the Government are not able to defend an action and the evidence they are not able to put into court goes to the heart of the case, thus making the case unfair, they have the right to apply to strike the case out? If a case is untriable, the Government are able to strike the case out.

[Mr Leigh]

Yes, my hon. and learned Friend is an experienced leading counsel. I would have thought that there are various ways in which this problem could be resolved. The sky will not fall in. Our security services are not going to be put at risk. But there is a principle of natural justice and I think that we should proclaim it.

Question put, That the Bill be now read the Third time.